Defining the attractive nuisance doctrine

As winter progresses into spring and summer here in Hamilton, you and your family may be justly excited to once again enjoy warm weather activities such as swimming and watersports. Yet as we here at Mesibov Butler can attest to, such activities can pose unforeseen risks, particularly to small children. Your hope may be that those who own swimming pools or hot tubs have taken the necessary precautions to protect your children from them. If not, and your child drowns or is injured in them, you may be able to hold such owners liable.

Many assume that a pool owner has to first accept liability by welcoming your child into his or her home or into his or her land. If your child was there without permission, then some may think the property cannot be responsible for anything that happens to him or her. The law, however, contradicts that assumption through a legal principle known as the attractive nuisance doctrine.

The attractive nuisance doctrine (as shared by the Legal Information Institute of the Cornell Law School), states that a property owner can indeed be held for injuries to children trespassing on his or her property if such a property contained an object or condition that posed a risk that children may not be able to comprehend. For example, if your young child did not know the dangers posed by a swimming pool, then such a principle may apply were you to bring action against the owner.

A pool or spa owner may lessen his or her risk of liability by placing barriers such as a fence around it. Yet depending on the circumstances of your case, even that may not absolve him or her of responsibility.

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Recent Cases

Sunyak v. City of Cincinnati, et al. — Served as a lead counsel in a precedent setting class action lawsuit valued at approximately 50 million dollars, brought on behalf of approximately 2,500 active municipal employees seeking to restore and maintain the value of pension benefits that had been reduced by a municipal ordinance.

Stein v. McGowan — Successfully represented a plaintiff physician in a defamation action resulting in a jury award of compensatory damages as well as punitive damages and attorney fees.

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